FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN T. SHAW, on behalf of himself 

and all others similarly situated; 

KENNETH COKE; RAYMOND 

RYDMAN,

Plaintiffs-Appellants,

v.

EXPERIAN INFORMATION SOLUTIONS,

INC.,

Defendant-Appellee.

No. 16-56587

D.C. No.

3:13-CV-01295-

JLS-BLM

OPINION

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted April 10, 2018

Pasadena, California

Filed May 29, 2018

Before: MARY M. SCHROEDER and MILAN D. 

SMITH, JR., Circuit Judges, and GERSHWIN A. DRAIN,*

District Judge.

Opinion by Judge Milan D. Smith, Jr.

 * The Honorable Gershwin A. Drain, United States District Judge 

for the Eastern District of Michigan, sitting by designation.
2 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

SUMMARY**

Fair Credit Reporting Act

The panel affirmed the district court’s summary 

judgment in favor of defendant Experian Information 

Solutions, Inc., in an action brought under the Fair Credit 

Reporting Act.

Plaintiffs alleged that Experian, a consumer reporting 

agency, violated the FCRA in the manner in which it 

reported short sales on their real property. 

The panel held that plaintiffs’ reasonable procedures and 

reasonable reinvestigation claims under 15 U.S.C. §§ 1681e 

and 1681i failed because plaintiffs’ credit reports were 

accurate.

Plaintiffs’ failure to disclose claim under § 1681g failed 

because Experian clearly and accurately disclosed to them 

all information that Experian recorded and retained that 

might be reflected in a consumer report.

Plaintiffs’ request for statutory damages under § 1681n 

failed because they did not show a willful violation by 

Experian.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 3

COUNSEL

Guerino John Cento (argued), Cento Law LLC,

Indianapolis, Indiana; Matthew J. Zevin, Stanley Law 

Group, San Diego, California; for Plaintiffs-Appellants.

Adam Wiers (argued), Jones Day, Chicago, Illinois; Kelly 

V. O’Donnell, Jones Day, San Diego, California; for 

Defendant-Appellee.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants John Shaw, Kenneth Coke, and 

Raymond Rydman (collectively, Appellants) brought this 

action against Defendant-Appellee Experian Information 

Solutions, Inc. (Experian), alleging violations of the Fair 

Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq. 

Between 2010 and 2011, each Appellant executed a short 

sale on real property that he owned. Appellants brought this 

action against Experian because of the manner in which 

Experian reported those short sales. The district court 

granted summary judgment in favor of Experian on all 

claims. We affirm.

First, we hold that Appellants’ reasonable procedures 

and reasonable reinvestigation claims fail because 

Appellants’ credit reports were accurate. Second, 

Appellants’ failure to disclose claim fails because Experian 

clearly and accurately disclosed to Appellants all 

information that Experian recorded and retained that might 

be reflected in a consumer report. Third, Appellants’ request 
4 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

for statutory damages under 15 U.S.C. § 1681n fails because 

they have not shown a willful violation by Experian.

FACTUAL AND PROCEDURAL BACKGROUND

I. Credit Reporting Industry

Experian is a consumer reporting agency (CRA) as 

defined by the FCRA. 15 U.S.C. § 1681a(f). CRAs receive 

credit information about borrowers and consumers from data 

furnishers, such as mortgage lenders and credit card 

companies. Furnishers generally report their data to CRAs 

using an agreed-upon format, known as Metro 2. 

Furnishers’ Metro 2 reporting requirements are specified in 

the Credit Reporting Resource Guide (CRRG), which is 

published by the Consumer Data Industry Association 

(CDIA), a CRA trade association.

Once CRAs receive credit information from furnishers, 

they compile and distribute the information to subscribers 

through credit reports, and to consumers through consumer 

disclosures.1 Even though it receives its data input in the 

standardized Metro 2 format, each CRA uses its own 

proprietary coding format to analyze and report credit 

information to subscribers. Experian provides credit reports 

to approximately 15,000 subscribers. It delivers its credit 

reports in a proprietary computer-generated format that 

displays credit information “in segments and bits and bytes,” 

but Experian provides technical manuals that enable 

subscribers to read and understand the credit reports they 

 1 The Consumer Financial Protection Bureau (CFPB) regulates 

CRAs and enforces the FCRA.
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 5

receive. Subscribers cannot read Experian’s reports without 

these technical manuals.

II. Short Sales

A short sale is a real estate transaction in which the 

property serving as collateral for a mortgage is sold for less 

than the outstanding balance on the secured loan, and the 

mortgage lender agrees to discount the loan balance because 

of a consumer’s economic distress. A short sale is a 

derogatory credit event that furnishers report to CRAs in a 

particular manner. By 2009, the CRRG instructed furnishers 

to report short sales to CRAs using an Account Status Code 

of “13 or 61-65, as applicable,” a Special Comment of “AU 

(Account paid in full for less than the full balance),” and a 

Current Balance and Amount Past Due amount of zero. An 

Account Status Code of 13 indicates a “[p]aid or closed 

account/zero balance,” while 61 through 65 indicates the 

account was paid in full and there was a “voluntary 

surrender,” “collection account,” “repossession,” “chargeoff,” or “foreclosure . . . started.”

When Experian receives data reporting a short sale, it 

must translate the data into its proprietary coding before it 

can export the data. Experian’s technical manual describes 

how it codes short sales:

• Account type: A mortgage-related 

account, such as a first mortgage or home 

equity line of credit.

• “Account condition” and “payment 

status” code: 68, which corresponds to a 

Special Comment of “Acct legally paid in 

full for less than the full balance.” The 68 

automatically populates a 9 into the first 
6 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

position on the payment history grid to 

display the “Settled” status.

• Payment history grid showing the final 

status (“Settled”) in the first digit, 

followed by 24 months of payment 

history information.

• Date in 25th month in the payment 

history grid corresponds to the date the 

furnisher reported the “Settled” status to 

Experian.

Thus, in the case of a short sale, the reported account 

condition code is 68 (“Account legally paid in full for less 

than the full balance”), which then automatically inserts the 

number 9 into the payment history grid (to display a 

“Settled” status).2 But a lead payment history code of 9 can 

represent multiple derogatory, non-foreclosure statuses. 

These include “Settled, Insurance Claim, Term Default, 

Government Claim, Paid by Dealer, BK Chapter 7, 11 or 12 

Petitioned, or Discharged and BK Chapter 7, 11 or 12 

Reaffirmation of Debt Rescinded.”

Foreclosures, on the other hand, are reported with a lead 

payment history code of 8 and an account condition and 

payment status code of 94 (“Creditor Grantor reclaimed 

collateral to settle defaulted mortgage”). According to 

Experian’s technical manuals, it is impossible for Experian’s 

 2 Our prospective references to “code combination 9-68” refers to 

accounts with a lead payment history code of 9 and an account condition 

code of 68.
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 7

credit reports to reflect a foreclosure with a lead payment 

history code of 9.

Experian prepares consumer disclosures in a more easily 

read format than the credit reports Experian provides to 

subscribers. For example, when an account in an Experian 

credit report contains code combination 9-68, the consumer 

disclosure lists “CLS” (Closed) in the lead payment history 

grid position. The disclosure also lists the account’s status 

as “Paid in Settlement” with a creditor’s statement of 

“Account legally paid in full for less than full balance.”

III. Fannie Mae

Fannie Mae is a government-sponsored entity that 

purchases loans from certain lenders. The rules governing 

Fannie Mae’s operations restrict which loans it can purchase, 

and it partly implements those restrictions through its own 

proprietary software, called Desktop Underwriter. Fannie 

Mae also licenses Desktop Underwriter to certain lenders. 

Importantly for Appellants, consumers with a prior 

foreclosure must wait seven years before obtaining a new 

mortgage through Fannie Mae, whereas consumers with a 

prior short sale need wait only two years.

When a prospective borrower submits a mortgage 

application to Fannie Mae, Desktop Underwriter analyzes 

credit report data about the prospective borrower obtained 

from CRAs. In doing so, Desktop Underwriter relies on 

Fannie Mae’s manner of payment code (MOP), which 

corresponds to Experian’s lead payment history code. Until 

2013, Desktop Underwriter “identified [mortgage accounts] 

as a foreclosure if there [was] a current status or [MOP] of 

‘8’ (foreclosure) or ‘9’ (collection or charge-off).” In other 

words, Fannie Mae elected to treat code 9 the same as it 

treated code 8, even though it knew from the instructions 
8 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

Experian had provided that code 9 did not represent a 

foreclosure, and that it was “necessarily capturing accounts 

that [were] not actually foreclosures.” Fannie Mae’s 

treatment of lead payment history codes 8 and 9 caused 

significant adverse consequences because it led Fannie Mae 

to impose a seven-year waiting period on consumers with a 

prior short sale, when the waiting period should only have 

been two years.

IV. Discovery of the Reporting Error

In 2010, consumers with prior short sales began 

notifying Experian that lenders had denied them new 

mortgages because their files erroneously showed prior 

foreclosures. In 2011 and 2012, various sources informed 

Experian that Fannie Mae’s Desktop Underwriter software 

was identifying short sales as foreclosures due to its 

treatment of Experian’s lead payment history code 9. 

Experian raised this issue with Fannie Mae, but neither entity 

changed its coding.

Appellants discovered this error during this same time 

period. Shaw executed a short sale in March 2010. He later 

ran his information through Desktop Underwriter, which 

indicated that he had executed a prior foreclosure. When he 

applied for a new mortgage, the bank used Freddie Mac’s 

(which is distinct from Fannie Mae) underwriting software, 

and it identified a short sale, not a foreclosure. The bank 

originated this loan because it understood that Shaw had 

experienced a prior short sale, not a foreclosure.

Coke executed a short sale in 2011. The next year, he 

obtained a mortgage from a bank that used an underwriting 

system other than Desktop Underwriter, and that software 

correctly identified this short sale. In 2013, the bank 

attempted to underwrite a different mortgage using Desktop 
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 9

Underwriter, which identified a possible foreclosure. Coke 

eventually received a loan from the bank once it recognized 

that Experian coded the account as a short sale, but he alleges 

that the loan had a higher interest rate, and this caused him 

stress and embarrassment.

Rydman executed a short sale in June 2011. In 2013, he 

applied for a new mortgage, and when the prospective lender 

used the Desktop Underwriter software, it identified a 

possible foreclosure, and his loan application was denied. 

He applied for another mortgage the following year, and 

received it because the lender did not use Fannie Mae’s 

Desktop Underwriter, and did not identify a potential 

foreclosure in his credit history. He alleges that the delay in 

obtaining a new mortgage caused him approximately

$55,000 in damages.

Between 2012 and 2013, each Appellant received a copy 

of his Experian consumer disclosure. Each subsequently 

disputed Experian’s reporting of his prior short sales, and 

Experian responded to each dispute in 2013.

In early 2013, the CRAs approved a new short sale code, 

which Experian implemented. In late 2013, Fannie Mae also 

updated its software to distinguish applicants that had 

executed short sales from those that had endured 

foreclosures. In 2014, Fannie Mae further refined Desktop 

Underwriter to identify foreclosures when there is a MOP 

code of 8 or foreclosure-related remarks code, and short 

sales when there are specific short sale-related remarks 

codes.

V. Procedural History

After receiving Experian’s responses to their disputes, 

Appellants filed this putative class action in June 2013 
10 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

against Wells Fargo, CitiMortgage, and Experian for 

violations of the FCRA. Following the stipulated dismissal 

of Wells Fargo and CitiMortgage, Appellants filed a second 

amended complaint alleging three claims against Experian: 

(1) a reasonable procedures claim pursuant to 15 U.S.C. 

§ 1681e; (2) a reasonable reinvestigation claim pursuant to 

15 U.S.C. § 1681i; and (3) a file disclosure claim pursuant 

to 15 U.S.C. § 1681g. They requested damages pursuant to 

15 U.S.C. § 1681n. This case was stayed pending the 

Supreme Court’s resolution of Spokeo, Inc. v. Robins, 135 S. 

Ct. 1892 (2015). After the Court issued its decision in 

Spokeo, and the stay was lifted, Experian moved for 

summary judgment.

The district court granted summary judgment in favor of 

Experian, and held: First, Appellants’ reasonable 

procedures and reasonable reinvestigation claims failed 

because they had not shown that their credit reports were 

inaccurate. Code combination 9-68 indicated a short sale, 

not a foreclosure. Second, Appellants’ file disclosure claim 

failed because they did not articulate what information 

Experian failed to disclose to them. Third, Appellants failed 

to establish that Experian willfully violated the FCRA 

pursuant to 15 U.S.C. § 1681n. Appellants timely appealed.

STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 

28 U.S.C. § 1291. We review de novo a district court’s grant 

of summary judgment. King v. County of Los Angeles, 

885 F.3d 548, 556 (9th Cir. 2018). We may affirm the 

district court on any ground supported by the record. 

Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1064 

(9th Cir. 2016).
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 11

ANALYSIS

The FCRA arose out of “congressional concern over 

abuses in the credit reporting industry.” Guimond v. Trans 

Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995). 

Congress thus enacted the FCRA in order “to ensure fair and 

accurate credit reporting, promote efficiency in the banking 

system, and protect consumer privacy.” Safeco Ins. Co. of 

Am. v. Burr, 551 U.S. 47, 52 (2007). We apply a liberal 

construction in favor of consumers when interpreting the 

FCRA. Guimond, 45 F.3d at 1333.

I. Reasonable Procedures and Reasonable 

Reinvestigation Claims

15 U.S.C. § 1681e(b) defines the FCRA’s requisite 

compliance procedures, and provides that: “Whenever a 

consumer reporting agency prepares a consumer report it 

shall follow reasonable procedures to assure maximum 

possible accuracy of the information concerning the 

individual about whom the report relates.”3 Liability under 

this reasonable procedures provision “is predicated on the 

reasonableness of the credit reporting agency’s procedures 

in obtaining credit information.” Guimond, 45 F.3d at 1333. 

“[T]he reasonableness of a [CRA’s] procedures is ‘normally 

a question for trial unless the reasonableness or 

unreasonableness of the procedures is beyond question.’” 

Cortez v. Trans Union, LLC, 617 F.3d 688, 709 (3d Cir. 

2010) (quoting Sarver v. Experian Info. Sols., 390 F.3d 969, 

 3 A consumer, or credit, report is a CRA-prepared report that a CRA 

issues to third parties for certain qualifying purposes. See 15 U.S.C. 

§ 1681a(d)(1); Gillespie v. Trans Union Corp. (Gillespie I), 482 F.3d 

907, 908 (7th Cir. 2007). The parties do not dispute that the reports 

generated by Experian for use by Fannie Mae and other lenders are

consumer reports.
12 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

971 (7th Cir. 2004)). To bring a § 1681e claim, the 

“consumer must present evidence tending to show that a 

[CRA] prepared a report containing inaccurate information.” 

Guimond, 45 F.3d at 1333.

15 U.S.C. § 1681i(a)(1)(A) outlines the scope of the 

reinvestigation required “in [the] case of disputed accuracy,” 

and provides, in part, that:

[I]f the completeness or accuracy of any item 

of information contained in a consumer’s file 

at a [CRA] is disputed by the consumer and 

the consumer notifies the agency directly . . . 

of such dispute, the agency shall, free of 

charge, conduct a reasonable reinvestigation 

to determine whether the disputed 

information is inaccurate and record the 

current status of the disputed information, or 

delete the item from the file . . . before the 

end of the 30-day period beginning on the 

date on which the agency receives the notice 

of the dispute from the consumer . . . .

In other words, a CRA must conduct a free and reasonable 

reinvestigation within thirty days of a consumer informing 

the CRA of disputed information. See id. However, what 

constitutes a “reasonable reinvestigation” will vary 

depending on the circumstances of the case. See Gorman v. 

Wolpoff & Abramson, LLP, 584 F.3d 1147, 1160 (9th Cir. 

2009). Moreover, although § 1681i “does not on its face 

require that an actual inaccuracy exist,” we, as with § 1681e 

claims, “have imposed such a requirement.” Carvalho v. 

Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th Cir. 2010). 

Requiring an inaccuracy, even absent an express statutory 

mandate, is consistent with the FCRA’s purpose “to protect 
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 13

consumers from the transmission of inaccurate information 

about them.” Id. (quoting Gorman, 584 F.3d at 1157); see

15 U.S.C. § 1681.

Thus, to sustain either a § 1681e or a § 1681i claim, a

consumer must first “make a ‘prima facie showing of 

inaccurate reporting’” by the CRA. Carvalho, 629 F.3d at 

890 (quoting Dennis v. BEH–1, LLC, 520 F.3d 1066, 1069 

(9th Cir. 2008)); see Guimond, 45 F.3d at 1333 (“In order to 

make out a prima facie violation under § 1681e(b), a 

consumer must present evidence tending to show that a 

[CRA] prepared a report containing inaccurate 

information.”). Here, because Appellants have not made 

such a showing, we need not consider the reasonableness of 

Experian’s procedures or reinvestigation efforts, and 

Appellants’ § 1681e and § 1681i claims fail.

We first clarified the meaning of “inaccurate” for 

purposes of the FCRA in Gorman. There, we held that 

information is inaccurate for purposes of 15 U.S.C. § 1681s2(b) where it either is “patently incorrect” or is “misleading 

in such a way and to such an extent that it can be expected 

to adversely affect credit decisions.” 584 F.3d at 1163 

(quoting Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 

895 (5th Cir. 1998)). Consistent with “the maxim of 

statutory construction that similar terms appearing in 

different sections of a statute should receive the same 

interpretation,” United States v. Nordbrock, 38 F.3d 440, 

444 (9th Cir. 1994), we apply the same understanding of 

“inaccurate” in analyzing § 1681e and § 1681i claims. See, 

e.g., Carvalho, 629 F.3d at 890 (extending Gorman’s 

definition of “inaccurate” to the California Consumer Credit 

Reporting Agencies Act and citing with approval the holding 

in Chiang v. Verizon New England Inc., 595 F.3d 26, 37 (1st 
14 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

Cir. 2010), that § 1681i “imposes essentially the same 

obligation” to prove data is “inaccurate” as § 1681s-2(b)).

The only purported inaccuracy to which Appellants 

plausibly point is Experian’s reporting of Appellants’ prior 

short sales. Because Experian has shown that it reported 

Appellants’ short sales using code combination 9-68, we 

must determine whether this manner of reporting was either 

“patently inaccurate” or “misleading.”

We hold that it was not. First, we conclude that reporting 

Appellants’ short sales using code combination 9-68 was not 

“patently incorrect.” Neither party argues that this code 

combination does not represent a short sale, and we find no 

evidence in the record to that effect.

The closer question, and the one on which Appellants 

rest much of their case, is whether Experian’s reporting of 

Appellants’ short sales using code combination 9-68 was 

misleading. We conclude that it was not. Under this test, 

imprecision alone does not render a CRA’s conduct 

actionable. Rather, the CRA’s reporting must be 

“misleading in such a way and to such an extent that it 

[could] be expected to adversely affect credit decisions.” 

Gorman, 584 F.3d at 1163 (quoting Sepulvado, 158 F.3d at 

895); see also Saunders v. Branch Banking & Tr. Co., 

526 F.3d 142, 148 (4th Cir. 2008) (“[A] consumer report that 

contains technically accurate information may be deemed 

‘inaccurate’ if the statement is presented in such a way that 

it creates a misleading impression.”).

That standard was not met here. Appellants argue that 

Experian’s reporting of Appellants’ short sales was 

misleading because Experian’s use of “catchall code 9” in 

the lead payment history spot caused Fannie Mae to treat the 

short sales as potential foreclosures. However, this 
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 15

argument fails to consider that Experian reported 

Appellants’ short sales with code combination 9-68. 

Account status code 68 automatically inserts 9 into the lead 

payment history spot, signifying that the account is 

“SETTLED” and “legally paid in full for less than the full 

balance.” This is the very definition of a short sale. 

Moreover, Appellants point to no authority suggesting that 

the inclusion of language describing what happens in a short 

sale, as opposed to the exact term “short sale,” is so 

misleading as to constitute a FCRA violation. Appellants 

are correct that the statute refers to “maximum possible 

accuracy,” not merely technical accuracy.4 See 15 U.S.C. 

§ 1681e(b). But this does not relieve Appellants of the 

burden to prove that the inaccuracy is “misleading in such a 

way and to such an extent that it can be expected to adversely 

affect credit decisions.” Carvalho, 629 F.3d at 890 (quoting 

Gorman, 584 F.3d at 1163).

We find persuasive the reasoning of a recent district 

court decision from our circuit addressing this very issue. In 

Banneck v. HSBC Bank USA, N.A., the plaintiff executed a 

short sale and Experian reported it with code combination 9-

68. No. 15-CV-02250-HSG, 2016 WL 3383960, at *1, *3–

4 (N.D. Cal. June 20, 2016). The plaintiff applied for a 

subsequent mortgage loan, and the lender ran the plaintiff’s 

 4 Appellants rely heavily on Koropoulos v. Credit Bureau, Inc., 

734 F.2d 37 (D.C. Cir. 1984), arguing that we have adopted it in full and 

that it necessarily compels us to decide this case in their favor. However, 

we are not bound by Koropoulos. Far from adopting it in full, we have

quoted it parenthetically only a handful of times, and only in support of 

the unremarkable definition of “inaccurate.” See Gorman, 584 F.3d at 

1163; see also Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1108 

(9th Cir. 2012). We find no reason to expand our adoption of some of 

the reasoning of Koropoulos, nor would doing so necessarily decide this 

case in Appellants’ favor.
16 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

application through Desktop Underwriter, which it had 

licensed from Fannie Mae. Id. at *4. The search triggered a 

“Refer with Caution” recommendation due to payment 

history grid code 9. Id. The district court reasoned that the 

plaintiff “has produced no evidence that Experian reported 

his short sale as anything other than a short sale.” Id. at *6. 

Notwithstanding the use of payment history grid code 9, 

which has multiple meanings, Experian’s reporting was not 

misleading because it “clarifie[d] which credit event [was] 

actually being reported with an undisputedly clear additional 

code”—account status code 68. Id. at *7. Accordingly, the 

district court granted summary judgment in favor of 

Experian due to a lack of inaccurate reporting. Id. at *7–8.

We are not swayed by Appellants’ attempts to 

distinguish Banneck by arguing that account status code 68 

is not “an undisputed clear additional code” for a short sale 

here. See id. (“Experian’s simultaneous reporting of the 

numerical code ‘68,’ which no one disputes refers only to a 

short sale, . . . is dispositive in favor of Experian.”). 

Appellants point to no evidence supporting this argument. 

To the contrary, Experian’s technical manual 

unambiguously indicates that a status code of 68 means 

“Account legally paid in full for less than the full balance.” 

Industry experts agree that this is the definition of a short 

sale. Indeed, even Appellants’ complaint acknowledges this 

is a definition of a short sale. Moreover, the record citations 

on which Appellants rely reflect concerns only about the 

lack of clarity in Metro 2 reporting, not Experian’s 

reporting.5

 5 Appellants point to the Metro 2 special comment code “AU,” 

which has the same meaning as account status code 68—“legally paid in 

full for less than the full balance.” However, code “AU” is part of the 
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 17

Furthermore, even if code combination 9-68 could stand

for other derogatory events and thereby be “misleading,” 

that alone would not render Experian’s reporting actionable. 

The reporting must be “misleading in such a way and to such 

an extent that it can be expected to adversely affect credit 

decisions.” See Gorman, 584 F.3d at 1163 (emphasis added) 

(quoting Sepulvado, 158 F.3d at 895); see also 15 U.S.C. 

§§ 1681a(k)(1), 1691(d)(6) (defining adverse action). In this 

case, classifying a short sale as a foreclosure was the only 

derogatory event that could have adversely affected credit 

decisions because it caused various lenders to require that 

borrowers wait seven, not two, years before obtaining a new 

loan. See Gorman, 584 F.3d at 1163; see also WilliamsSteele v. TransUnion, 642 F. App’x 72, 73 (2d Cir. 2016) 

(affirming dismissal of FCRA claims where “inaccuracies in 

[plaintiff’s] credit reports [] had no bearing on her creditworthiness”).

Here, there is no evidence that code combination 9-68 

could have represented a foreclosure. When Experian codes 

foreclosures, it uses a code combination of 8-94, meaning 

“[c]reditor [g]rantor reclaimed [the] collateral to settle 

defaulted mortgage.” And a foreclosure does not occur 

where a mortgage account is “legally paid in full for less than 

the full balance” as occurs with a short sale. Evidence that 

Fannie Mae employees have, in the past, seen foreclosures 

coded with lead payment history code 9 fails to recognize 

that our inquiry is whether code combination 9-68 could 

represent a foreclosure.

 

Metro 2 system that furnishers use to report to CRAs, not a value that 

Experian uses in its credit reports. Because Experian does not report 

code “AU” in its credit reports, code “AU” cannot be classified as an 

inaccuracy in Experian’s credit reports.
18 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

Certainly, Fannie Mae’s treatment of code 9 on 

Appellants’ accounts as a possible foreclosure could have 

adversely affected credit decisions when Appellants sought 

new mortgages. But this does not render Experian’s 

reporting misleading. Fannie Mae conceded that it knew 

that, by treating accounts with code 9 as a foreclosure, it was 

“necessarily capturing accounts that [were] not actually 

foreclosures.” Thus, the record before us indicates that the 

inaccurate reporting of Appellants’ short sales was due to 

Fannie Mae’s mistreatment of Experian’s coding, not 

Experian’s own inaccuracies. Appellants introduce 

evidence that there was “confusion and complaints about 

code 9,” but can point to no other subscribers or 

underwriting software that could not identify a short sale 

from code combination 9-68.

Appellants also contend that Experian’s reporting was 

misleading because Experian knew that Fannie Mae was 

misreading its technical manuals and did not act on this 

knowledge. But Appellants cite no case law suggesting that 

Experian must amend its reporting system when a subscriber 

disregards its technical manuals in order to avoid liability, 

and we are aware of none. Nor would such a rule better 

achieve the purposes of the FCRA. Experian provides credit 

reports to approximately 15,000 users. The FCRA does not 

suggest that Experian should be liable for the misconduct of 

one of those 15,000 subscribers, even if that subscriber is as 

well known as Fannie Mae. Nor should Experian necessarily 

be required to amend its coding to curb a single subscriber’s 

misconduct when all 14,999 other subscribers are apparently 

accurately reading its manuals.

In sum, Appellants fail to point to any inaccuracies on 

their credit reports. Because they fail to meet this threshold 

burden, we need not consider whether Experian had 
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 19

reasonable procedures or conducted reasonable 

reinvestigations when Appellants disputed their credit 

information. We therefore affirm the district court’s grant of 

summary judgment with regard to Appellants’ reasonable 

procedures and reasonable reinvestigation claims.

II. Failure to Disclose Claim

15 U.S.C. § 1681g(a) provides, in part, that “[e]very 

consumer reporting agency shall, upon request, . . . clearly 

and accurately disclose to the consumer: . . .[a]ll information 

in the consumer’s file at the time of the request . . . .” A 

consumer’s file includes “all information on the consumer 

that is recorded and retained by a [CRA] that might be 

furnished, or has been furnished, in a consumer report on that 

consumer.” Cortez, 617 F.3d at 711–12 (quoting Gillespie 

I, 482 F.3d at 909). Appellants offer several theories in 

support of their claim that Experian failed to comply with 

§ 1681(g), all of which fail for the reasons that follow.

First, Appellants argue Experian’s consumer disclosures 

violated § 1681g(a)(1) because Experian placed the 

designation “CLS” (Closed) in the lead spot on the payment 

history grid on each consumer disclosure, instead of one of 

the code 9 statuses. This argument paints an incomplete 

picture of Experian’s reporting. Code combination 9-68 

means the account’s status is “settled,” with a special 

comment of “-Acct legally paid in full for less than the full 

balance.” Experian reported this same information in 

Appellants’ consumer disclosures: Their accounts had the 

status “[p]aid in settlement” with a creditor’s statement of 

“[a]ccount legally paid in full for less than full balance.”

Appellants argue that because the status category on a 

consumer disclosure (“Paid in settlement”) is a separate 

category from the lead digit in the payment history grid on a 
20 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

credit report, these categories serve different purposes. 

However, Appellants cite to neither portions of the record 

nor guiding case law supporting this position. Our inquiry 

here is whether the disclosure is “understandable to the 

average consumer,” and it is unclear to us how the specific 

placement of “[p]aid in settlement” on the consumer 

disclosure could affect a consumer’s comprehension. See 

Gillespie v. Equifax Info. Servs., LLC, No. 05 C 138, 

2008 WL 4316950, at *6 (N.D. Ill. Sept. 15, 2008) 

(describing the holding of Gillespie v. Equifax Info. Servs., 

LLC (Gillespie II), 484 F.3d 938 (7th Cir. 2007)). To the 

contrary, Experian complied with § 1681(g) because it 

provided Appellants with “[a]ll information in [their] file[s] 

at the time of the[ir] request[s]” in a form that was both 

“clear[] and accurate[].” See 15 U.S.C. § 1681g(a).

Second, Experian is not required to report the actual code 

9 in a consumer disclosure. Indeed, requiring Experian to 

provide its proprietary coded data in a consumer disclosure 

would contradict § 1681g(a)’s requirement that the 

disclosure be “clear.” A consumer who received a disclosure 

with code 9 on it would likely not be able to “compare the 

disclosed information from the credit file against the 

consumer’s personal information in order to . . . determine 

the accuracy of the information set forth in her credit file” 

because the average consumer would not know what code 9 

means. See Gillespie II, 484 F.3d at 941. In order for a 

consumer to understand code 9, Experian would have to 

report account status code 68 and release its complicated 

technical manual, which would further confuse 

unsophisticated consumers. Thus, while disclosing code 9 

would be “accurate,” it would no longer be “clear” and 

comprehensible to the average consumer.
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 21

Third, we reject Appellants’ argument that Experian 

violated § 1681g(a)(1) because “there was a material 

disconnect between the information displayed in 

[Appellants’] consumer reports and the information 

displayed in [Appellants’] consumer disclosures . . . due to 

the presence of the catchall code 9.” This is, in essence, a 

repetition of Appellants’ arguments misinterpreting 

Experian’s coding. While lead payment history code 9 can 

represent various derogatory statuses, account status code 68 

further clarifies the account’s status and the specific 

derogatory event attached to it.

We also note that Experian is not required to report that 

Fannie Mae mishandled its data. Experian is only required 

to report “information on the consumer that is recorded and 

retained by [Experian] . . . in a consumer report.” Cortez, 

617 F.3d at 711 (quoting Gillespie I, 482 F.3d at 909). 

Fannie Mae’s misreading of lead payment code 9 is not

information retained by Experian in any credit report. 

Therefore, it falls outside the bounds of a “file” for purposes 

of § 1681g(a).

Appellants received complete copies of their consumer 

reports. They are not entitled by the FCRA to information 

that is not in their report, and they fail to identify what 

information Experian improperly excluded from its 

disclosures. We therefore affirm the district court’s grant of 

summary judgment with regard to Appellants’ failure to 

disclose claim.

III. Willfulness Pursuant to 15 U.S.C. § 1681n

As we conclude that Experian did not violate the FCRA, 

Appellants’ 15 U.S.C. § 1681n claim must fail. Yet even 

assuming that Experian violated the FCRA, Appellants fail 

to show that any violation by Experian was willful. To 
22 SHAW V. EXPERIENCE INFORMATION SOLUTIONS

recover statutory damages for a violation of the FCRA, 

Appellants must show that Experian willfully failed to 

comply with the statute. See 15 U.S.C. § 1681n(a); Safeco, 

551 U.S. at 56–57. A willful violation of the FCRA occurs 

where a defendant knowingly or recklessly violated the 

FCRA. Safeco, 551 U.S. at 57.

Recklessness is an objective standard. See id. at 68–69. 

A defendant acts in reckless disregard when its action both 

is “a violation under a reasonable reading of the statute’s 

terms” and “shows that the company ran a risk of violating 

the law substantially greater than the risk associated with a 

reading that was merely careless.” Id. at 69.

As to Appellants’ first two claims, there was no statute, 

CFPB guidance, or case law that “might have warned 

[Experian] away from the view it took” or informed 

Experian that its approach to reporting short sales was 

objectively unreasonable. See id. at 70. To the contrary, the 

CFPB informed Experian that it had investigated the short 

sale-foreclosure problem and discovered that the underlying 

problem was not due to inaccurate reporting by furnishers or 

CRAs. This agency guidance suggests Experian’s conduct, 

even if it were a violation of the FCRA, was not objectively 

unreasonable and therefore not reckless. See id. at 70 & 

n.20. While the CFPB “essentially rescinded” this 

memorandum, it did not inform Experian of this change in 

its position. Therefore, Experian’s only guidance was the 

prior CFPB memo.

As previously discussed, a district court has agreed with 

Experian’s position regarding the accuracy of its reporting. 

See Banneck, 2016 WL 3383960, at *6. Admittedly, 

Banneck was decided after this litigation began and therefore 

Experian could not have relied upon its reasoning. But we 

cannot conclude that Experian’s interpretation was 
SHAW V. EXPERIENCE INFORMATION SOLUTIONS 23

objectively unreasonable when it relied on the guidance of 

its regulatory agency and at least one district court has 

subsequently agreed with its interpretation of the FCRA. See 

Safeco, 551 U.S. at 70 n.20 (“Where, as here, the statutory 

text and relevant court and agency guidance allow for more 

than one reasonable interpretation, it would defy history and 

current thinking to treat a defendant who merely adopts one 

such interpretation as a knowing or reckless violator.”).

Appellants similarly fail to show willfulness as to their 

failure to disclose claim. Even if Experian had violated 

§ 1681g, we cannot say that Experian acted in an objectively 

unreasonable manner. Experian’s decision not to list code 9 

in its consumer disclosures was not objectively unreasonable 

because the only relevant guidance dictated that consumers 

are entitled to “complete copies of their consumer reports, 

not their entire files in whatever form maintained by the 

CRA.” See Gillespie I, 482 F.3d at 909. Nor have 

Appellants pointed to any authority indicating that it was 

objectively unreasonable for Experian to include the same 

information in credit reports and consumer disclosures but 

in different fields or locations. We do not so conclude now. 

Therefore, Appellants have failed to show willfulness by 

Experian as required by 15 U.S.C. § 1681n.

CONCLUSION

For the foregoing reasons, we affirm the district court’s 

grant of summary judgment in favor of Experian.

AFFIRMED.